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Free Exercise of Abortion
Get PDFFor too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they center women’s conscientious decisions for the first time in many decades.
In law and religion circles, the predominant response has been skepticism. As claims for reproductive freedom have appeared, erstwhile supporters of expansive exemptions propose to raise the bar. They increase standards for religiosity, sow doubts about women’s sincerity, and argue for lightening the government’s burden. Constitutionally illicit stereotypes about women’s (in)capacity for moral agency, trustworthiness, and altruism seep into religious liberty arguments.
These attacks on the free exercise of religious convictions about abortion implicitly—and sometimes expressly—advance religious preferentialism. They invite and expect the courts to reject pro-abortion religious claims even as they urge courts to treat anti-abortion convictions as sacrosanct. The consequence would be to exile some categories of religious people from religious liberty protections, while Christian conservatives gain systematic favor
“Any”
Get PDFOur statute books use the word “any” ubiquitously in coverage and exclusion provisions. As any reader of the Supreme Court’s statutory interpretation docket would know, a large number of cases turn on the contested application of this so-called universal quantifier. It is hard to make sense of the jurisprudence of “any.” And any effort to offer a unified approach—knowing precisely when its scope is expansive (along the “literal-meaning” lines of “every” and “all”) or confining (having a contained domain related to properties provided by contextual cues)—is likely to fail. This Article examines legislative drafting manuals, surveys centuries of Court decisions, and conducts in-depth pairwise comparisons of “any” cases to show the word’s flexible set of uses in its multiple statutory guises. After evaluating evidence of the variability of “any,” we recommend a new approach, a form of an “any” canon. We encourage adjudicators to appreciate the complexity of “any” more systematically and to consult a full range of sources—as even full-throated textualists have authorized from time to time—offering the relevant larger context judges will need to ascertain the scope of “any” in any given statutory scheme
Byte a Carrot for Change: Uprooting Problems in Data Privacy Regulations
Get PDFThere is a growing gap between technology advancement and a lagging regulatory system. This is particularly problematic in consumer data privacy regulating. Companies hold collected consumer data and determine its use largely without accountability. As a result, ethical questions that carry society-shaping impact are answered in-house, under the influence of groupthink, and are withheld from anyone else weighing in.
This Note poses a solution that would address multiple data privacy regulation issues. Namely, an incentive approach would help even out the information-imbalanced system. Incentives are used as tools throughout intellectual property law to foster commercial progress, discourage trade secrets, and protect consumers. These goals can also be achieved through integrating an incentive into consumer data privacy regulating.
This Note first highlights major issues in the current consumer data privacy federal regulatory landscape. Next, this Note proposes and outlines a narrow FTC whistleblower incentive, unearthing how an incentive would alleviate each major regulatory issue. Finally, this Note discusses eight compelling reasons for the incentive, and ultimately confronts and rebuts its drawbacks
Good Representatives, Bad Objectors, and Restitution in Class Settlements
Get PDFThis Article uses two recent decisions — one prohibiting incentive awards to class representatives and one permitting disgorgement of side payments to class objectors — to explore deeper connections between class action settlements and the law of restitution. The failure to correctly apply the law of restitution led both courts astray. First, courts can approve incentive awards, as long as an award properly reflects the benefit that the representative\u27s efforts bestowed on the class. Second, restitution provides a basis to disgorge improper side payments to objectors, but only under conditions different from those that the court described. More broadly, attention to the substantive and remedial principles of restitution can provide useful solutions to vexing problems of class action practice
Resolving Unfairness in a Fair Way: How the Grantor Trust Rules Should Be Reformed
Get PDFAffluent taxpayers often create one or more grantor trusts to achieve significant tax savings. By leveraging mismatches in the rules between the income and estate tax systems, these taxpayers avoid the compressed income tax brackets of trusts while minimizing the property that is included in their estates for estate tax purposes. Some commentators have argued that reform is needed to remove such mismatches. Yet, trusts that rely on the current grantor trust rules abound.
This Note (1) provides a background and history of the rules and use of grantor trusts, (2) argues that harmonizing the estate and income tax systems is the best method for reforming the grantor trust rules, and (3) proposes grandfathering provisions that should be included in any reform of the grantor trust rules to ensure that taxpayers who have relied on current rules are not treated unfairly
Frederick Douglass and the Original Originalists
Get PDFConstitutional scholars incessantly grapple over the significance of the Constitution’s original meaning. More specifically, they are preoccupied with, on the one hand, what that meaning is (if such meaning exists) and, on the other hand, the exact nature of that meaning’s authority (if any) over the Constitution and its interpreters. But this debate is hardly novel. In fact, one of the most compelling voices in U.S. history was immersed in similar debates and, out of the constitutional sparring of his time, forged an arresting theory of constitutional interpretation. Frederick Douglass, once a fierce opponent of the U.S. Constitution, evolved into a defender of the Constitution with a robust theory of constitutional interpretation that addressed the constitutional evil of slavery. For example, in 1847, Douglass stated: “The Constitution I hold to be radically and essentially slave-holding … [t]he language of the Constitution is you shall be a slave or die.” Yet, five years later in his famous speech, “What to the Slave is the Fourth of July?”, Douglass declared: “interpreted as it ought to be interpreted, the Constitution is a glorious liberty document.” Because Douglass was primarily a political and constitutional actor that never wrote a treatise of jurisprudence, his understanding of constitutionalism must be gleaned from his many speeches and other writings. I therefore take on the task of welding together these speeches and writings to demonstrate how Douglass’s theory fuses historical meaning, established legal rules of interpretation, natural rights principles, and a conception of justice into a cohesive approach that addresses the problem of constitutional interpretation and construction.
Though Douglass was one of the most prominent political thinkers and constitutional actors of the 19th century, his constitutional thought has been overlooked by most legal scholars and mostly mischaracterized by political scientists. Due to the aforementioned lack of a singular treatise on the subject, as well as Douglass’s constitutional transformation over the course of his life, this comes as no surprise. Legal scholars tend either to dismiss his constitutional theory as incoherent or to assume that Douglass’s reformed theory was not sincere, but merely a smokescreen for political purposes. Others have referred to Douglass as a living constitutionalist or offered wholly new categories to explain Douglass’s position, such as “reform textualism.” However, Douglass’s theory, similar to his contemporaries, may be seen as anticipating the modern shift to originalism. But this claim challenges the conventional scholarly wisdom in two ways. First, the current literature mostly characterizes Douglass as, at the very least, anti-originalist. Second, though Douglass’s theory shares many elements with originalism, originalism’s current formulations leave little room for philosophical inquiry, which Douglass’s theory admittedly does. His theory does not fit perfectly into any of the many variations of originalism today, thereby offering present-day originalists new possibilities. I will thus refer to Douglass’s theory as “natural rights originalism.” Natural rights originalism deviates most importantly in not abandoning the original philosophical principles that animated the Constitution’s framing. This theory, the product of an insatiably inquisitive mind, transformed Douglass’s constitutional thinking – no longer was the Constitution an instrument of oppression, but one of freedom